Carl MINOR
v.
CASUALTY RECIPROCAL EXCHANGE.
Court of Appeal of Louisiana, First Circuit.
*952 S. Alfrеd Adams, Baton Rouge, for Plaintiff-Appellant Carl Minor.
Boris F. Navratil, Navratil, Hardy & Bourgeois, Baton Rouge, for Defendant-Appellee Casualty Reciprocal Exchange.
Michael L. Hyman, Baton Rouge, for Intervenor-Appellee Frank's Door and Building Supply Company.
Before GONZALES, PARRO and KUHN, JJ.
PARRO, Judge.
An underinsured motorist struck and injured the plaintiff as he walked from his employer's vehicle toward a convenience store to get a drink of water. The plaintiff's clаim against his employer's business automobile insurance carrier was dismissed after trial, and he brings this appeal.
BACKGROUND
Carl Minor was employed by Frank's Door and Building Supply Company ("Frank's"). He and another employee were making deliveries in a truck owned by Frank's and insured by Casualty Reciprocal Exchange ("Casualty"). It was a hot day and the truck was not air-conditioned, so between deliveries, they stopped at а Circle K convenience store to get some water. Minor got out of the passenger side of the truck, walked around the front of the truck, stopped and spoke briefly with the driver, and then turned and started across the parking lot toward the store entrance. As he was crossing the lot, a college student backed out of a parking space and struck Minor, breaking his left leg. The young driver's liability insurer paid its рolicy limit of $25,000 and both were released.
Minor claimed damages in excess of this amount from Casualty. Casualty insured Frank's on a business automobile policy with uninsured/underinsured motorist insurance ("UM") limits of $500,000. The policy covered several company vehicles, including the truck Minor was using to make deliveries when he was injured. Frank's and "Frank Dispensire, Individual," were the only named insureds on the policy. The case was tried on the issue of whether Minor was covered under a UM provision which stated an insured included anyone "occupying" a covered auto.
After trial, the court took the case under advisement. In written reasons for judgment, the court stated:
In order for the uninsured motorist coverage to apply in the instant case the plaintiff must prove that the time and distance factors were proximate to the risk to which а person exposes himself while alighting from a vehicle. Alternatively, in order for the plaintiff to recover, there must be proof that he was on a mission related to the vehicle.
It is the opinion of this writer that the plaintiff failed to prove by a preponderance of the evidence that he should recover *953 under either of the two above mentioned theories.
The court signed a judgment dismissing Minor's suit, and denied a motion for new trial. This appeal follоwed.
Minor reiterates his claim of entitlement to UM coverage because he was "occupying" a covered vehicle under the policy when the accident occurred. He also asserts in briefs to this court that coverage is provided to him as a named insured under the UM endorsement to the policy.[1]
APPLICABLE LAW
STANDARD OF REVIEW
Interpretation of an insurance contract is usually a legal question. Madden v. Bourgeois, 95-2354 (La.App. 1st Cir. 6/28/96),
However, the question of whether or not a person is "occupying" a vehicle is a mixed question of fact and law. The trial court must first make factual findings about the physical relationship of the victim to the insured vehicle. Once those facts are determined, the trial court must interрret the policy language and apply the law to the particular circumstances before the court, and may be guided by other cases which have interpreted similar policy provisions. In Smith v. Girley,
The two-part test for the appellate review of facts is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court, and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill,
INTERPRETATION OF INSURANCE POLICY
An insurance policy is a contract between the parties and should be construed using general rules of interpretation of contracts provided in the Louisiana Civil Code. Lewis v. Hamilton, 94-2204 (La. 4/10/95),
ANALYSIS
The pertinent provisions in the UM endorsement to the Casualty policy define an insured as:
*954 1. You.
2. If you are an individual, any "family member."
3. Anyone else "occupying" a covered "auto"....
Throughout the policy, the word "you" refers to the named insured. "Occupying" is defined as "in, upon, getting in, on, out or off."
COVERAGE UNDER THE FIRST TWO DEFINITIONS
Minor's first contention is that he is an insured under the first two definitions of the UM endorsement. He bases this claim on certain language in a dissenting opinion in Barnes v. Thames,
We find no merit in plaintiff's contention that since the policy in question is a business automobile policy issued to a corporation, the definition of an insured as "you or any family member" renders the policy ambiguous.
Barnes,
Casualty also points out that the policy at issue in this case includes an individual as a named insured, in addition to the corporation, so the language including family members cannot be said to be ambiguous in this context. We agree, and further note this policy clearly states that the "family member" designation applies only if the named insured is an individual. There is no ambiguity under which this definition could be expanded to include employees in the course and scope of their employment.
Recently, in Valentine,
However, Minor also contends because employees, while in the course and scopе of employment, are specifically excluded from coverage under the liability and medical payments provisions, the lack of such an exclusion in the UM endorsement implies that they are included in that coverage. He is partially correct. The exclusion is not in the UM endorsement because employees who are "occupying" an insured vehicle are not meant to be exсluded. If the UM endorsement contained the same exclusionary language as the liability and medical payments sections, employees who would otherwise be covered because they were occupying an insured vehicle would not be covered, although anyone else occupying an insured vehicle would be covered. The exclusion is not in the UM endorsement because the intent is tо cover employees, but only if they are "occupying" an insured vehicle.
In Valentine,
[T]hе failure to have someone designated for coverage as a "you" (a named insured) is of no moment.... Corporations ..., legal persons that are incapable of sustaining bodily injury damage, buy UM policies in which the corporation ... is the named insured. As in the instant case, coverage is provided under these policies for anyone "occupying" a covered auto.
Valentine,
Likewise, we determine in the instant case, it is reasonable to conclude the UM endorsement to the policy did not specifically exclude employees in the course and scope of their employment for two reasons: 1) beсause they were clearly not included in the first two definitions of an insured, so did not need to be excluded, and; 2) because the intent was to include them in the third definition only. Accordingly, Minor's argument that he had UM coverage under the first two definitions is without merit.
COVERAGE UNDER THE THIRD DEFINITION
Having concluded Minor was not covered under the UM endorsement as an insured under the first two definitions, we examine whether he is covered as a person "occuрying" a covered auto. The trial court did not enumerate the factual findings upon which it concluded Minor did not satisfy his burden of proof, either that the time and distance factors were not proximate to the risk to which a person exposes himself while alighting from a vehicle, or that he was not on a mission related to the vehicle. This court must first determine whether the relevant jurisprudence indeed establishеs these as the factors the plaintiff must prove, and must then review the record to see if there is a reasonable factual basis for the trial court's conclusion.
Analysis of the Jurisprudence
Many of the cases examining whether a plaintiff was "occupying" a vehicle for the purpose of UM coverage found coverage if there was any evidence of physical contact with the vehicle, regardless of the specific policy language. See, e.g., Smith,
However, beginning with Hendricks v. American Employers Ins. Co.,
This court denied coverage in Breard v. Haynes,
The physical relationship between the person and the vehicle was again stressed in Day v. Coca-Cola Bottling Co., Inc.,
Although the accident victim in Snider v. Kemper Ins. Co.,
In Crear v. Nat'l. Fire & Marine Ins. Co.,
When the time and distance factors are no longer prоximate to the risk to which a person exposes himself while alighting from a vehicle, coverage ceases. The person at some time and at some distance "loses" the UM protection....
Crear,
The Louisiana Supreme Court focused on the zone of risk in Westerfield v. LaFleur,
The plaintiff in White v. Williams,
[P]laintiff had never abandoned his relationship as passenger of the insured vehicle. His physical departure was solely for the purpose of perfоrming an act that was physically and directly related to the car. He never turned aside from this mission and was in fact in the process of resuming *957 his physical contact with the vehicle when injured.
White,
In Armstrong v. Hanover Ins. Co.,
The most recent case to address this issue was Valentine,
A review of the relevant jurisprudence establishes the importance of examining the particular policy language used to define "occupying." However, based on the Armstrong and Valentine cases, it appears the jurisprudence is moving away from an expansive interpretation of such policy provisions, and will evaluate the language using the ordinary meaning of the words in the policy.
Application To The Instant Case
We conclude the trial court correctly identified the relevant factors to use in determining whether or not Minor was "occupying" the insured vehicle. Aрplying these factors to the instant case, we note the following facts which impact the relationship between the victim and the insured vehicle at the time of the accident:
1. Minor was in the course and scope of his employment and was using the insured truck as part of his work;
2. He had gotten out of the truck within moments before he was hit;
3. He was walking away from the truck, and was between 6 to 10 feet from it;
4. His purpose at the moment of impact was directed away from the truck, and had nothing to do with the truck.
Based on these facts, we conclude the trial court was correct in determining Minor was not "occupying" the insured vehicle. He had no physical contact with it at the time of the accident. More importantly, his physical and intentional relationship to the vehicle had become attenuated. Minor's trip toward the Circle K involved activity directed toward his own comfort to enable him to better continue his work. As in the Crear case, Minor's direction was away from the truck, not toward it, and his purpose was not directly related to it. Unlike the plaintiff in White, he was not involved in a mission which would make it possible for him to continue driving the insured vehicle, nor was he heading toward it. Most importantly, the record shows Minor was clearly nоt "in" the truck, nor was he "upon" it or "getting in" it. And because he was already some distance from the truck and approaching the store entrance, he was no longer "getting out" of or "getting off" of the vehicle when he was hit. Finally, Minor was no longer within the zone of risk attendant to getting out or off the vehicle.
Given these facts and circumstances, there was a reasonable factual basis for the finding of the trial court that Minor did not prove he was "in, upon, getting in, on, out or off" the insured vehicle, as that language has been interpreted in the jurisprudence. The trial court's determination was neither manifestly erroneous nor legally incorrect. Accordingly, he was not an insured under this provision of the UM endorsement.
CONCLUSION
For the above reasons, we affirm the judgment of the trial court. All costs of this appeal are to bе paid by Minor.
AFFIRMED.
NOTES
Notes
[1] Minor did not make this argument to the trial court, and Casualty urges this court not to consider it for that reason. However, this issue is purely a question of policy interpretation; it is a legal issue dependent only upon policy language. The policy is in the record. Under LSA-C.C.P. art. 862, a party is not required to plead a "theory of the case," and LSA-C.C.P. art. 2164 allows this court to render any judgment which is just, legal, and prоper upon the record on appeal. Accordingly, this court will address this argument.
[2] The Valentine opinion also lists a number of cases in which Louisiana courts have held that when the named insured is a political entity or a corporation, coverage is restricted to the named insured and does not extend to the members/employees of the political entity or employees of the corporation. See Valentine,